Nos.

14-556, 14-562, 14-571 and 14-574

In the

JAMES OBERGEFELL, ET AL., AND BRITTANI

HENRY, ET AL., Petitioners,
v.
RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL., Respondents.
VALERIA TANCO, ET AL., Petitioners,
v.
WILLIAM EDWARD BILL HASLAM, GOVERNOR
OF TENNESSEE, ET AL., Respondents.
APRIL DEBOER, ET AL., Petitioners,
v.
RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,
Respondents.
GREGORY BOURKE, ET AL., AND TIMOTHY LOVE,
ET AL., Petitioners,
v.
STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET
AL., Respondents.
ON WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
BRIEF FOR THE ALLIANCE: STATE
ADVOCATES FOR WOMENS RIGHTS AND
GENDER EQUALITY AS AMICUS
IN SUPPORT OF PETITIONERS
LISA M. STONE
JANET CHUNG
DAVID WARD
LEGAL VOICE
907 Pine Street, Suite 500
Seattle, WA 98101
(206) 682-9552
dward@legalvoice.org

KATHLEEN M. OSULLIVAN
Counsel of Record
ABHA KHANNA
DAVID A. PEREZ
CATHERINE S. SIMONSEN
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
206.359.8000
KOSullivan@perkinscoie.com

Counsel for Amicus Curiae

-iTABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE ........................ 1
SUMMARY OF ARGUMENT ................................ 1
ARGUMENT ........................................................... 4
A.

Sexual-Orientation
Discrimination Is a Form of Sex
Discrimination. .................................. 4

B.

Experience in Most States

Demonstrates that Same-Sex
Couples Cannot Rely on the
Democratic Process To Win the
Freedom To Marry. .......................... 15

C.

The Patchwork of State Laws

on Marriage for Same-Sex
Couples Creates Significant
Harms and Uncertainty for
Same-Sex Couples and Their
Children. .......................................... 28

CONCLUSION ...................................................... 32
APPENDIX
Description of Alliance Organizations ....... 1a

-iiTABLE OF AUTHORITIES
Page(s)
CASES
Andersen v. King County,
138 P.3d 963 (Wash. 2006) ............................... 21
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993)................................... 18
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810
(1972) ................................................................. 22
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014), cert.
denied, 135 S. Ct. 316 (2014) ............................ 16
Benson v. Alverson,
No. A11-811, 2012 WL 171399
(Minn. Ct. App. Jan. 23, 2012) ......................... 22
Bostic v. Schaefer,
760 F.3d 352 (4th Cir.), cert.
denied, 135 S. Ct. 308 (2014) ............................ 28
Bowen v. Gilliard,
483 U.S. 587 (1987)............................................. 2
Centola v. Potter,
183 F. Supp. 2d 403 (D. Mass.
2002) .................................................................. 12

-iiiCity of Cleburne v. Cleburne Living

Center,
473 U.S. 432 (1985)............................................. 2
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014) ..................... passim
Heller v. Columbia Edgewater Country
Club,
195 F. Supp. 2d 1212 (D. Or. 2002) .................. 12
In re Adoption of R.B.F.,
803 A.2d 1195 (Pa. 2002) .................................. 13
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ................................... 18
J.E.B. v. Alabama,
511 U.S. 127 (1994)............................................. 7
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014),
cert. denied, 135 S. Ct. 265 (2014) ...............16, 29
Koren v. Ohio Bell Tel. Co.,
894 F. Supp. 2d 1032 (N.D. Ohio
2012) .................................................................. 12
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014) ...................3, 10, 11
Loving v. Virginia,
388 U.S. 1 (1967)............................................... 28
Lyng v. Castillo,
477 U.S. 635 (1986)............................................. 2
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982)......................................7, 8, 9

-ivOrr v. Orr,
440 U.S. 268 (1979)............................................. 8
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal.
2010), affd sub nom. Perry v.
Brown, 671 F.3d 1052 (9th Cir.
2012), vacated and remanded sub
nom. Hollingsworth v. Perry, 133 S.
Ct. 2652 (2013) .................................................. 19
Plyler v. Doe,
457 U.S. 202 (1982)............................................. 2
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)........................................... 12
Prowel v. Wise Business Forms, Inc.,
579 F.3d 285 (3d Cir. 2009) .............................. 13
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App.
1974) .................................................................. 20
Singer v. Hara,
84 Wash. 2d 1008 (Wash. 1974) ....................... 20
Stanton v. Stanton,
421 U.S. 7 (1975)................................................. 8
T.B. v. L.R.M.,
786 A.2d 913 (Pa. 2001) .................................... 13
Terveer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014) ..................... 11
United States v. Virginia,
518 U.S. 515 (1996)......................................2, 7, 9

-vUnited States v. Windsor,

133 S. Ct. 2675 (2013)....................................... 28
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975)............................................. 8
Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa.
2014) .................................................................. 18
STATUTES
Defense of Marriage Act, Pub. L. No.
104-199, 110 Stat. 2419 (1996) ......................... 20
1997 Minn. Laws ch. 203, art. 10 .......................... 22
2011 Minn. Laws ch. 88 ......................................... 23
2013 Minn. Laws ch. 74 ......................................... 23
1996 Pa. Laws 706 ................................................. 18
Wash. Rev. Code 49.60.10 ................................... 26
1998 Wash. Sess. Laws 1 ....................................... 20
2006 Wash. Sess. Laws 12 ..................................... 26
2007 Wash. Sess. Laws 616 ................................... 21
2008 Wash. Sess. Laws 24 ..................................... 21
2009 Wash. Sess. Laws 3065 ................................. 21
2012 Wash. Sess. Laws 199 ................................... 21
OTHER AUTHORITIES
Pa. Legis. J. (H.R.) (June 28, 1996) ....................... 18

-viAndrew Garber and Ralph Thomas,

State Gay-Rights Bill Passed 29
Years After Effort Began, The
Seattle Times (Jan. 28, 2006, 12:00
AM),
http://community.seattletimes.nws
ource.com/archive/?date=20060128
&slug=gayrights28m ........................................ 26
Andrew Koppelman, Why
Discrimination Against Lesbians
and Gay Men Is Sex
Discrimination, 69 N.Y.U. L. Rev.
197 (1994) .............................................6, 7, 11, 12
Bob Bernick, Poll: Idahoans Think It
Should Be Illegal To Discriminate
Against LGBT Residents, Idaho
Politics Weekly (Jan. 4, 2015)
http://idahopoliticsweekly.com/polit
ics/16-poll-idahoans-think-itshould-be-illegal-to-discriminateagainst-lgbt-residents ....................................... 27
Deborah A. Widiss et al., Exposing Sex
Stereotypes in Recent Same-Sex
Marriage Jurisprudence, 30 Harv.
J.L. & Gender 461 (2007) ................................. 10

-viiDennis Romboy, Support for Statewide

Nondiscrimination Law Growing
in Utah, Poll Shows, Deseret News
(Oct. 21, 2014, 2:20 PM),
http://www.deseretnews.com/article
/865613621/Support-for-statewidenondiscrimination-law-growing-inUtah-poll-shows.html?pg=all ........................... 25
The Federalist No. 51 (James
Madison)............................................................ 20
The Federalist No. 78 (Alexander
Hamilton) .......................................................... 19
Juliet Eilperin, Gay Marriage Fight
Will Cost Tens of Millions, The
Washington Post (July 1, 2013),
http://www.washingtonpost.com/blo
gs/the-fix/wp/2013/07/01/howmuch-will-the-gay-marriage-fightcost-over-the-next-three-yearstens-of-millions/ ................................................ 24
Idaho House Committee Rejects Add
the Words Bill Along Party-Line
Vote, Idaho Statesman (Jan. 29,
2015),
http://www.idahostatesman.com/20
15/01/29/3617387/idaho-housecommittee-to-debate.html ................................ 27

-viiiLambda Legal, Langbehn v. Jackson

Memorial Hospital,
http://www.lambdalegal.org/incourt/cases/langbehn-v-jacksonmemorial ........................................................... 31
Legal Voice, Celebrating Equality,
http://legalvoice.org/focus/lgbt/docu
ments/LegalVoiceLGBTwork1980s2014.pdf ............................................................. 13
Marc A. Fajer, Can Two Real Men Eat
Quiche Together? Storytelling,
Gender-Role Stereotypes, and Legal
Protection for Lesbians and Gay
Men, 46 U. Miami L. Rev. 511
(1992) ............................................................. 6, 11
Minn. Legislative Reference Library,
Constitutional Amendments,
http://www.leg.state.mn.us/lrl/mng
ov/constitutionalamendments.aspx ................. 23
Monica Disare, In the Northeast, Only
Pa. Lacks Law on Discrimination
by Sexual Orientation, Pittsburgh
Post-Gazette (July 29, 2013, 12:00
AM), http://www.postgazette.com/news/state/2013/07/29/
In-the-Northeast-only-Pa-lackslaw-on-discrimination-by-sexualorientation/stories/201307290195 .................... 27

-ixNatl Conference of State Legislatures,

Same-Sex Marriage Laws (Feb. 9,
2015),
http://www.ncsl.org/research/huma
n-services/same-sex-marriagelaws.aspx ......................................................18, 24
Natl Conference of State Legislatures,
Same-Sex Marriage on the Ballot
(Nov. 7, 2012, 5:10 AM),
http://www.ncsl.org/legislatureselections/elections/same-sexmarriage-on-the-ballot.aspx ............................. 24
National LGBTQ Task Force, State
Nondiscrimination Laws in the
U.S. (May 21, 2014),
http://www.thetaskforce.org/static_
html/downloads/reports/issue_map
s/non_discrimination_5_14_new.pd
f .......................................................................... 26
Public Policy Polling, Warner Safe for
Reelection (May 30, 2013),
http://www.publicpolicypolling.com/
pdf/2011/PPP_Release_VA_53013.p
df ........................................................................ 25
Raven Molloy, Christopher L. Smith,
and Abigail Wozniak, Internal
Migration in the United States, 25
J. Econ. Perspectives 173 (Summer
2011) .................................................................. 30

-xSasha Aslanian, Marriage Amendment

Fight Topped $18M, Minnesota
Public Radio News (Feb. 1, 2013),
http://www.mprnews.org/story/201
3/02/01/politics/marriageamendment-campaign-financereports ............................................................... 23
Sylvia A. Law, Homosexuality and the
Social Meaning of Gender, 1998
Wis. L. Rev. 187 (1988) ..................................... 11
Tara Parker-Pope, Kept from a Dying
Partners Bedside, The New York
Times (May 18, 2009),
http://www.nytimes.com/2009/05/1
9/health/19well.html?_r=0................................ 31
Wash. Secy of State, Election Search
Results, November 1997 General,
http://www.sos.wa.gov/elections/res
ults_report.aspx?e=6&c=&c2=&t=
&t2=&p=&p2=&y= ........................................... 26
Wash. Secy of State, Referendum
Measure 71 Concerning Rights and
Responsibilities of State-Registered
Domestic Partners,
http://results.vote.wa.gov/results/2
0091103/Referendum-Measure-71concerning-rights-andresponsibilities-of-state-registereddomestic-partners.html .................................... 21

-xiWash. Secy of State, Referendum

Measure No. 74 Concerns Marriage
for Same-Sex Couples,
http://results.vote.wa.gov/results/2
0121106/Referendum-Measure-No74-Concerns-marriage-for-samesex-couples.html ............................................... 22
William N. Eskridge, Jr., A Social
Constructionist Critique of Posners
Sex and Reason: Steps Toward a
Gaylegal Agenda, 102 Yale L.J. 333
(1992) ..........................................................6, 7, 11
The White House, Fact Sheet: Taking
Action to Support LGBT Workplace
Equality is Good For Business
(July 21, 2014),
http://www.whitehouse.gov/thepress-office/2014/07/21/fact-sheettaking-action-support-lgbtworkplace-equality-good-business-0 ................ 25

-1INTEREST OF AMICUS CURIAE

Amicus curiae is The Alliance: State
Advocates for Womens Rights and Gender Equality
(the Alliance), an alliance of state-based womens
equality and gender justice legal organizations.
These organizations have substantial expertise in
constitutional issues related to equal protection of
the laws, including with respect to discrimination
based on sex, sexual orientation, gender identity,
and gender stereotypes. Their expertise thus bears
directly on the issues before the Court in Obergefell
v. Hodges, No. 14-556, Tanco v. Haslam, No. 14562, DeBoer v. Snyder, No. 14-571, and Bourke v.
Beshear, No. 14-574. Descriptions of the individual
organization-members of the Alliance are set out in
the Appendix.1
SUMMARY OF ARGUMENT
The majority opinion in DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014), is based on several
propositions that are fundamentally inconsistent
with the Alliance organizations real-world
experience working in various states to end
discrimination against lesbian, gay, bisexual, and
1 Amicus curiae submits this brief pursuant to the
written consent of the parties as reflected in letters
Respondents have filed with the Clerk and the written
consent Petitioners have given amicus curiae. No party or
counsel for a party has authored this brief in whole or in part,
and no person or entity other than amicus curiae has made a
financial contribution to its preparation or submission.

-2transgender (LGBT) people. Amicus submits this

brief to share this experiencewhich bears directly
on the issues in this casewith the Court.
First, the DeBoer majority treated the bans
on marriage of same-sex couples at issue here as
classifications based on sexual orientation, and
then scrutinized them under rational-basis review.
This was a mistake, and not only because sexual
orientation,
if
treated
as
a
stand-alone
classification, requires heightened scrutiny under
this Courts precedents. 2 In the Alliances
experience, discrimination on the basis of sexual
orientation is a form of sex-based discrimination,
which is based on and aimed at reinforcing
stereotypical gender roles. Ohios, Kentuckys,
Michigans, and Tennessees bans on marriage
between same-sex couples are no different. They
single out men who are perceived as acting like
women
(by
forming
committed,
intimate
relationships with men), and women perceived as
acting like men (by forming committed, intimate
2 LGBT people fit all the hallmarks of a suspect class.
They are a minority group who have suffered a history of
invidious discrimination and relative lack of political power,
and their sexual orientation is an immutable and
distinguishing characteristic that bears no relation to their
ability to contribute to society. See City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 440-41 (1985); United
States v. Virginia (VMI), 518 U.S. 515, 531-32 (1996); Plyler
v. Doe, 457 U.S. 202, 216 n.14 (1982); Lyng v. Castillo, 477
U.S. 635, 638 (1986); Bowen v. Gilliard, 483 U.S. 587, 602
(1987).

-3relationships with women), and punish that nongender-stereotypical behavior by denying these
men and women benefits reserved for those who act
in accordance with gendered expectations. They are
thus sex-based classifications that should be
subject to heightened scrutiny. 3 Having long
recognized this reality, the Alliance organizations
have advocated for LGBT rightsin some cases for
decadesas part of their work of advancing gender
equality.
Second, the DeBoer majority took for granted
that absent court intervention the democratic
process will eventually end the bans on marriage
of same-sex couples in Ohio, Kentucky, Michigan,
and Tennessee. The majority implicitly relied on
this assumption in concluding that voters, rather
than courts, should decide whether and when to
license marriage of same-sex couples. Putting aside
the obvious legal flaws in this reasoningthat
federal courts generally have no discretion to
abstain from ruling on constitutional questions and
have both the power and the duty to engage in
3 Bans on marriage of same-sex couples are properly
understood as sex-based classifications not only because they
are based on and legally entrench gender stereotypes but also
because they facially discriminate on the basis of sex: the only
reason a man may not marry a man in Ohio, Kentucky,
Michigan, and Tennessee is because he himself is a man; the
only reason a woman may not marry a woman is because she
herself is a woman. Numerous courts have so held. See Latta
v. Otter, 771 F.3d 456, 480-84 & n.7 (9th Cir. 2014) (Berzon,
J., concurring) (collecting cases).

-4judicial review for the precise purpose of

safeguarding individuals constitutional rights from
majoritarian movementsthe DeBoer majoritys
assumption that same-sex couples can rely on the
democratic process to end marriage bans finds no
support in history or reality.
Finally, the DeBoer majority found no
injustice in its assumption that American law will
[eventually] allow gay couples to marry; [the
question] is [only] when and how that will happen.
772 F.3d at 395. But in the Alliance organizations
experience, when matters. Same-sex couples and
their children face significant burdens today, not
only in Ohio, Kentucky, Michigan, and Tennessee,
but in every state of the union, because of the
patchwork of state laws on marriage. It is not
enough that some of the laboratories of
experimentation have already recognized marriage
for same-sex couples. Until their freedom to marry
is recognized in every state, they and their children
will continue to suffer significant harm and
uncertainty.
ARGUMENT
A.

Sexual-Orientation Discrimination Is a
Form of Sex Discrimination.

Alliance
members
are
organizations
dedicated to advancing womens equality and
gender justice. They have worked extensively on
LGBT issues because they recognizefrom their

-5collective experience of over 115 years of work

that gender discrimination is intersectional and
that discrimination on the basis of sex and
discrimination
against
LGBT
people
are
inextricably linked. Gender stereotypes restrict
men to a narrow notion of masculinity, while
animating discrimination against women because
they are women and against LGBT people because
of their sexual orientation or gender identity.
Gender stereotypes underlie the gender hierarchy
that values male above female. Likewise,
gender stereotypes underlie the rejection of LGBT
people because they are not perceived as acting the
way men and women are stereotypically expected
to act. Because of this shared root in gender
stereotypes and gender ideology, discrimination on
the basis of sexual orientationincluding the bans
on marriage of same-sex couples at issue hereis
discrimination on the basis of sex.
LGBT equality and sex equality are two
facets of the same issue: legislative and populist
efforts to stymy equality on either front are rooted
in deep-seated, often subconscious notions of
traditional gender roles in male-dominated
societies in which women are held to be
undeserving of or unsuited for the same authority,
voice, and positions of power as men. One need look
no further than the hateful words used to demean
gay men and lesbians to confirm this self-evident
truth. Gay men are called fairies and pansies
because of their association with stereotypical
female roles and behaviors. Lesbians are called

-6butches and dykes because of their association

with stereotypical male roles and behaviors. The
non-gender-stereotypical behavior that earns
victims these badges of dishonor includes a range of
conduct interpreted through a gender lens: men
showing signs of weakness such as crying or overt
nurturing behavior; women showing signs of
aggressiveness, competitiveness, hardness, or
non-vulnerability; or, most relevant here, women
forming committed, intimate relationships with
women and men forming committed, intimate
relationships with men. See Marc A. Fajer, Can
Two Real Men Eat Quiche Together? Storytelling,
Gender-Role Stereotypes, and Legal Protection for
Lesbians and Gay Men, 46 U. Miami L. Rev. 511,
607-610, 617-24 (1992).
Indeed, the traditional notion of sex between
a man and a woman is the most literal incarnation
of societys views of the proper place of men and
women.
See
Andrew
Koppelman,
Why
Discrimination Against Lesbians and Gay Men Is
Sex Discrimination, 69 N.Y.U. L. Rev. 197, 224
(1994) (The idea that sexual penetration implies
the subordination of the person penetrated should
hardly be unfamiliar to modern Americans.);
William N. Eskridge, Jr., A Social Constructionist
Critique of Posners Sex and Reason: Steps Toward
a Gaylegal Agenda, 102 Yale L.J. 333, 368 (1992)
(explaining that in ancient Greece, the adult male
citizen always had to be the active partner in sex;
the passive partner was a social subordinate).
That a man would become the spouse of another

-7man and assume a womans place in the intimate

relationship thus threatens to upend the
traditional hierarchy of men over women even more
than letting women vote, or own property, or work
outside the home. See Koppelman, supra at 235-36;
Eskridge, supra at 356-57. When a state declares
that it will approve only marriages between a man
and a woman, it is really declaring that it will
approve only (and grant special benefits only to
individuals engaging in) conduct that conforms to
stereotypes about gender roles.
That is discrimination on the basis of sex,
lacking any rational justificationlet alone an
exceedingly persuasive oneand is therefore
unconstitutional. VMI, 518 U.S. at 531; see id. at
541-42 ([E]qual protection principles, as applied to
gender classifications, mean state actors may not
rely on overbroad generalizations to make
judgments about people that are likely to
perpetuate historical patterns of discrimination[.])
(quoting J.E.B. v. Alabama, 511 U.S. 127, 139 n.11
(1994)); Miss. Univ. for Women v. Hogan, 458 U.S.
718, 725 (1982) (classifications violate the
Fourteenth Amendment when they are based on
fixed notions concerning the roles and abilities of
males and females).
This Court has repeatedly invalidated
classifications based on gender stereotypes that,
like bans on marriage of same-sex couples, result
from and perpetuate the hierarchy of men over
women. For example, in Stanton v. Stanton, the

-8Court invalidated a statute requiring parents to

support their sons until age twenty-one but their
daughters only until age eighteen, recognizing that
the law was impermissibly based on and
entrenched the gendered assumption that the
female [is] destined solely for the home and the
rearing of the family, and only the male for the
marketplace and the world of ideas. 421 U.S. 7, 1415 (1975).
Likewise, in Weinberger v. Wiesenfeld, the
Court invalidated a Social Security provision that
granted survivors benefits to widowers and their
children in lesser amounts than those granted to
widows and their children. 420 U.S. 636 (1975).
The gender-based generalization that men are
more likely than women to be the primary
supporters of their spouses and children . . . c[ould]
[] not suffice to justify the denigration of the efforts
of women who do work and whose earnings
contribute significantly to their families support.
Id. at 645.
And in Orr v. Orr, the Court invalidated a
law permitting alimony payments to be imposed
only on husbands upon divorce, noting that laws
announcing the States preference for an allocation
of family responsibilities under which the wife
plays a dependent role, and . . . seeking for their
objective the reinforcement of that model among
the
States
citizens,
are
constitutionally
impermissible. 440 U.S. 268, 279 (1979); see also,
e.g., Miss. Univ. for Women, 458 U.S. at 729-30

-9(holding unconstitutional state nursing schools

policy of denying admission to males, which tends
to perpetuate the stereotyped view of nursing as an
exclusively womans job and lends credibility to
the old view that women, not men, should become
nurses, and makes the assumption that nursing is
a field for women [become] a self-fulfilling
prophecy); VMI, 518 U.S. at 585 (impermissible to
deny women access to the finest military training
in Virginia based on findings . . . about typically
male or typically female tendencies such as
males tend to need an atmosphere of
adversativeness, while females tend to thrive in a
cooperative atmosphere) (alterations omitted).
Indeed, the Court requires heightened
scrutiny of sex-based classifications precisely in
order to assure that the validity of [the]
classification is determined through reasoned
analysis rather than through the mechanical
application of traditional, often inaccurate,
assumptions about the proper roles of men and
women. Miss. Univ. for Women, 458 U.S. at 72526. These same assumptions about the proper roles
of men and womenin the home, in intimate
relationships, as spouses and parentsalso
animate the bans on marriage of same-sex couples
at issue here.
Jurists, legal scholars, and social scientists
alike have recognized that bans on marriage of
same-sex couples are sex-based classifications. For
example, in a concurring opinion in Latta v. Otter,

-10771 F.3d 456 (9th Cir. 2014), in which the Ninth

Circuit struck down Idahos and Nevadas
prohibitions on the marriage of same-sex couples,
Judge Berzon explained why the gender
discrimination rubric [] squarely appl[ies] to the
same-sex marriage bans:
[T]he
concepts
and
standards
developed in more than forty years of
constitutional
sex
discrimination
jurisprudence
rest
on
the
understanding that sanctioning sexbased classifications on the grounds
that men and women, simply by virtue
of their gender, necessarily play
different roles in the lives of their
children and in their relationships
with each other causes concrete harm
to women and to men throughout our
society. [S]ame-sex marriage bans
belie that understanding, and, for that
reason . . . , cannot stand.
Id. at 496 (Berzon, J., concurring) (quoting Deborah
A. Widiss et al., Exposing Sex Stereotypes in Recent
Same-Sex Marriage Jurisprudence, 30 Harv. J.L. &
Gender 461, 505 (2007)) (alterations and citations
omitted); see also id. at 486 ([P]rohibitions [on the
marriage of same-sex couples] . . . communicate the
states view of what is both normal and preferable
with regard to the romantic preferences,
relationship roles, and parenting capacities of men
and women. By doing so, the laws enforce the

-11states view that men and women naturally

behave differently from one another in marriage
and as parents.).
Judge Berzons reasoning echoed what
scholars have explained for years. See Koppelman,
supra at 202 ([T]he prohibition of homosexuality
preserves the polarities of gender on which rests
the subordination of women.); Fajer, supra at 516
([S]ince a significant purpose and demonstrable
effect of anti-gay discrimination is to rigidify
existing gender-role stereotypes, a society serious
about eliminating gender inequality must also
eliminate discrimination against gay men and
lesbians.); id. at 618-24, 631-37; Eskridge, supra at
356 (Allowing same-sex marriage would benefit
many women, especially those whose social
subordination has been effectuated as well as
reinforced by the Western tradition of maledominated marriage, and would contribute to the
erosion of gender-based hierarchy within the
family . . . .); Sylvia A. Law, Homosexuality and
the Social Meaning of Gender, 1998 Wis. L. Rev.
187.
Likewise, courts around the country have
concluded that discriminating on the basis of
sexual orientation is a way of discriminating on the
basis of sex. See Terveer v. Billington, 34 F. Supp.
3d 100, 115 (D.D.C. 2014) (plaintiffs allegation that
discrimination occurred because of his status as a
homosexualwithout moreplausibly suggested
the discrimination was based on gender

-12stereotypes) (citing Price Waterhouse v. Hopkins,

490 U.S. 228, 251 (1989)); Koren v. Ohio Bell Tel.
Co., 894 F. Supp. 2d 1032, 1037-38 (N.D. Ohio
2012) (plaintiffs allegations that his supervisor
discriminated against him because he is married to
a man and took his husbands last name is a claim
of discrimination because of sex); Centola v. Potter,
183 F. Supp. 2d 403, 410 (D. Mass. 2002) (Sexual
orientation harassment is often, if not always,
motivated by a desire to enforce heterosexually
defined gender norms. In fact, stereotypes about
homosexuality are directly related to our stereotype
about the proper roles of men and women.); Heller
v. Columbia Edgewater Country Club, 195 F. Supp.
2d 1212, 1224 (D. Or. 2002) (belief that women
should only be attracted to and date men is a
gender stereotype).
Indeed, the Alliance organizations have long
worked to fight for LGBT equality, both because
injustice against LGBT people is a distinct
constitutional wrong, and because the effort to end
LGBT discrimination is a necessary part of the
effort to end all forms of gender inequality. Cf.
Koppelman, supra at 202. For example, since the
1980s, Legal Voice, an Alliance member based in
the Pacific Northwest, has brought groundbreaking lawsuits and has fought for legislation to
end discrimination against LGBT people on all
fronts, including by serving on the governing board
of Washington United for Marriage, the coalition
that successfully advocated in 2012 to ratify

-13legislation extending civil marriage to same-sex

couples in the state of Washington.4
Similarly, for over forty years, Womens Law
Project (WLP), an Alliance member based in
Pennsylvania, has engaged in impact litigation
challenging discrimination (including sexualorientation discrimination) rooted in gender
stereotypes. WLP served as counsel to amici curiae
in several landmark decisions in Pennsylvania,
including: T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001),
which conferred third-party standing on parents in
same-sex relationships to sue for partial custody or
visitation of the children they have raised; In re
Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002), which
recognized that the Pennsylvania Adoption Act
permits second-parent adoption in families headed
by same-sex couples; and Prowel v. Wise Business
Forms, Inc., 579 F.3d 285 (3d Cir. 2009), in which
the Court of Appeals reinstated a Title VII sex
discrimination claim involving concurrent evidence
of sexual-orientation discrimination.
And the mission of Gender Justice, an
Alliance member based in Minnesota, is to
eliminate gender barriers whether linked to sex,
sexual orientation, gender identity, or gender
expression, in large part by dismantling damaging
stereotypes about femininity and masculinity.
4 For a summary of Legal Voices work on LGBT
rights since the 1980s, see Legal Voice, Celebrating Equality,
http://legalvoice.org/focus/lgbt/documents/LegalVoiceLGBTwo
rk1980s-2014.pdf.

-14Gender Justice works on behalf of anyone facing

gender discrimination, advocating for women and
girls, but also for men and boys, and for LGBT
individuals who challenge gender norms. Because
of its focus, Gender Justice challenges institutions
that
are
simultaneously
homophobic
and
misogynistic, like the Pink Locker Room tradition
which denigrates opposing team members by
suggesting that they are girls and sissies. Along
with cases challenging pregnancy discrimination,
sexual harassment of immigrant workers and of
low-income renters, and the failure to promote
women, Gender Justice has brought cases
reinforcing the right of LGBT individuals to be free
from sexual-orientation harassment at work, and
path-breaking cases to enforce the rights of
transgender individuals to be free from
discrimination by employers and health-care
providers.
The Alliance organizations commitment to
LGBT rights initiatives over the last forty years is
consistent with their understanding of the true
nature of gender inequality. They believe that all
forms of gender discrimination are linked, and that
sexual-orientation discrimination must be analyzed
as a facet of sex discrimination.
Bans on marriage of same-sex couples are
state-backed legal regimes that are based on and
reinforce gender stereotypes that harm everyone,
including LGBT people and heterosexual and nontransgender women and men oppressed by the

-15imposition of those stereotypes. Such bans cannot

stand.
B.

Experience in Most States

Demonstrates that Same-Sex Couples
Cannot Rely on the Democratic Process
To Win the Freedom To Marry.

The DeBoer majority concluded that bans on

marriage of same-sex couples pass muster under
the Fourteenth Amendment because, as a
prudential matter, the issue is best left to voters. In
other words, the court characterized the issue
before it not as whether the Fourteenth
Amendment requires a state to license a marriage
between two people of the same sex, but rather as
[w]ho [should] decide[]the people, through the
state democratic processes, or the courts. 772
F.3d at 396; see id. (framing the issue as which
route
the
United
States
Constitution
contemplates); id. at 402 (democracy-versuslitigation path to same-sex marriage).
As an initial matter, this circular logic sidesteps altogether the constitutional question the
court was required to answer: whether the
Constitution provides relief when the democratic
process produces discriminatory policies. As Judge
Daughtrey explained in dissent, the question here
is not who should decide but rather whether a
states constitutional prohibition of same-sex
marriage violates equal protection under the
Fourteenth Amendment. Id. at 421 (Daughtrey, J.,

-16dissenting); see also Baskin v. Bogan, 766 F.3d 648,

671 (7th Cir. 2014) (Minorities trampled on by the
democratic process have recourse to the courts; the
recourse is called constitutional law.), cert. denied,
135 S. Ct. 316 (2014); Kitchen v. Herbert, 755 F.3d
1193, 1228 (10th Cir. 2014) ([T]he judiciary is not
empowered to pick and choose the timing of its
decisions and may not deny [same-sex couples]
relief based on a mere preference that their
arguments be settled elsewhere.), cert. denied, 135
S. Ct. 265 (2014).
But even assuming the question the majority
set about to answer was relevant (whether samesex couples should be left to win their freedom to
marry through the democratic process), its
answer was incorrect. See DeBoer, 772 F.3d at 403
(the definition of marriage should not be
constitutionaliz[ed] but rather left in the hands
of state voters). The majoritys conclusion rested
on one central premise: same-sex couples freedom
to marry is only a matter of time, and so the
judiciary should stand back and allow same-sex
couples to secure that equal treatment through the
democratic process rather than the courts. See id.
at 395 ([T]he question is not whether American
law will allow gay couples to marry; it is when and
how that will happen.); id. at 396 (suggesting that
in the absence of federal court action, the
democratic processes begun in the States [to
recognize marriage between same-sex couples will]
continue in the four States of the Sixth Circuit); id.
at 407 (characterizing state democratic forces and

-17evolving community mores as already coming to

terms with a new view of marriage); id. at 409 (In
. . . [s]tates [that currently do not license marriages
between same-sex couples], the people seem[]
primed to re-amend[] their constitutions to
broaden the category of those eligible to marry);
id. at 415 (succeeding more and failing less are in
the offing for same-sex couples). After all, the
Court of Appeals reasoned, same-sex couples will
surely feel better about winning the freedom to
marry if they earn[] [it] through initiatives and
legislation . . . rather than through decisions issued
by a majority of Supreme Court Justices[.] Id. at
417-18; see id. at 421 (Better in this instance, we
think, to allow change through the customary
political processes, in which the people, gay and
straight alike, become the heroes of their own
stories . . . .).
In the Alliance organizations experience, the
premise underlying the majoritys conclusionthat
same-sex couples freedom to marry, secured
through the democratic process, is a foregone
conclusion and simply a matter of getting out into
the neighborhoods and communities in which gay
and lesbian couples live to win over the last
remaining heads and hearts, id. at 417
fundamentally misunderstands how difficult it has
been and will continue to be to end marriage bans
through the democratic process. Contrary to the
majoritys opinion, that process cannot be relied
upon in either the short or long term to secure the
freedom to marry for same-sex couples.

-18As an initial matter, of the thirty-seven

states that now recognize marriages of same-sex
couples, the overwhelming majoritytwenty-five,
including the Alliance states of Alaska, California,
Idaho, Iowa, Montana, Oregon, New Mexico,
Pennsylvania, and Wisconsinarrived there
through court order, not a vote of the legislature or
the people. 5 For example, the Alliance state of
Pennsylvania was one of fifteen states to amend
their marriage laws in 1996 in response to Baehr v.
Lewin, a Hawaii Supreme Court decision holding
that Hawaiis law prohibiting marriage between
two people of the same sex establish[ed] a sexbased classification, 852 P.2d 44, 64 (Haw. 1993).
1996 Pa. Laws 706; see Pa. Legis. J. (H.R.) 2017
(June 28, 1996) (Do you want a group of judges in
Hawaii determining Pennsylvanias laws and
policies?). It took a ruling by a Pennsylvania
federal courteighteen years laterstriking down
Pennsylvanias law on Fourteenth Amendment
grounds for same-sex couples in that state to secure
the freedom to marry. See Whitewood v. Wolf, 992
F. Supp. 2d 410 (M.D. Pa. 2014).
Another Alliance state, California, is a
particularly noteworthy example. Same-sex couples
there won the freedom to marry from the California
Supreme Court in 2008. In re Marriage Cases, 183
5 See Natl Conference of State Legislatures, Same-Sex
Marriage
Laws
(Feb.
9,
2015),
http://www.ncsl.org/research/human-services/same-sexmarriage-laws.aspx (last visited Mar. 4, 2015).

-19P.3d 384 (Cal. 2008). Before the ink was dry on that
opinion, however, opponents were already
organizing Proposition 8, the Eliminates Right of
Same-Sex Couples to Marry Act, which was
adopted by a majority vote of the people later that
year and which amended the state constitution to
ban marriages of same-sex couples. Stymied by the
voters, proponents of the freedom to marry in
California were forced back to the courts,
eventually regaining equal treatment only after a
federal
court
declared
Proposition
8
unconstitutional. Perry v. Schwarzenegger, 704 F.
Supp. 2d 921 (N.D. Cal. 2010), affd sub nom. Perry
v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated
and remanded sub nom. Hollingsworth v. Perry,
133 S. Ct. 2652 (2013).
The history of ending bans on marriage for
same-sex couples in this country is thus notas the
DeBoer majority suggested, 772 F.3d at 396a
series of parallel tracks in the legislatures,
populace, and courts, all reaching (or destined to
reach) the same result. The judiciary has often had
to step in and exercise its proper role: protecting
minorities rights from the majoritarian impulses of
the democratic process. See The Federalist No. 78
(Alexander Hamilton) ([J]udges . . . guard the
Constitution and the rights of individuals from the
effects of those ill humors, which the arts of
designing men, or the influence of particular
conjunctures, sometimes disseminate among the
people themselves, and which . . . have a tendency,
in the meantime, to occasion . . . serious

-20oppressions of the minor party in the community.);

The Federalist No. 51 (James Madison) (It is of
great importance in a republic . . . to guard one part
of the society against the injustice of the other part.
. . . If a majority be united by a common interest,
the rights of the minority will be insecure.). That
same-sex couples have had success in the courts
says nothing about their prospects for convincing
voters to grant them the freedom to marry.
Even in the few states where voters have
been so convinced, the process was long, arduous,
and expensive. For example, efforts to end the ban
on marriage for same-sex couples in the Alliance
state of Washington began in 1971, when a samesex couple was denied a marriage license and
subsequently brought a lawsuit in state court
arguing
that
Washingtons
Equal
Rights
Amendment and the U.S. Constitution prohibited
the denial of marriage licenses to same-sex couples.
See Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.
1974). The Washington Court of Appeals rejected
this argument, id.; the Washington Supreme Court
denied review, Singer v. Hara, 84 Wash. 2d 1008
(Wash. 1974); and the next twenty years saw
almost no movement in the state to win the
freedom to marry. Then, in 1998, in a further
setback and on the heels of the enactment of the
federal Defense of Marriage Act (DOMA), Pub. L.
No. 104-199, 110 Stat. 2419 (1996), the Washington
legislature passed a statute banning civil marriage
for same-sex couples, overriding a gubernatorial
veto. 1998 Wash. Sess. Laws 1. After a lengthy

-21battle in the courts, including a lawsuit brought by

Alliance member Legal Voice, the Washington
Supreme Court in 2006 ruled by a five-to-four
margin that the statute did not violate the state
constitution. Andersen v. King County, 138 P.3d
963 (Wash. 2006).
Following the defeat in court, the
Washington state legislature passed a series of
laws from 2007 to 2009 to establish and expand the
rights and obligations of domestic partners. 2007
Wash. Sess. Laws 616; 2008 Wash. Sess. Laws 24;
2009 Wash. Sess. Laws 3065. After the final bill
was passed in 2009, which extended to registered
domestic partners virtually all the rights and
obligations afforded to married couples under state
law, opponents of the domestic partnership law
promptly sponsored a referendum to rescind the
bill. After an expensive, statewide campaign, voters
narrowly approved the legislation.6
In 2012, the Washington legislature finally
passed a law allowing same-sex couples to marry.
2012 Wash. Sess. Laws 199. Opponents of the law
again sponsored a referendum to rescind it.
Proponents of the freedom to marry spent over $12
million dollars and countless hours over the months
6 See Wash. Secy of State, Referendum Measure 71
Concerning Rights and Responsibilities of State-Registered
Domestic
Partners,
http://results.vote.wa.gov/results/20091103/ReferendumMeasure-71-concerning-rights-and-responsibilities-of-stateregistered-domestic-partners.html (last visited Mar. 4, 2015).

-22that followed to win approval later that year. 7

Finally, on December 6, 2012, over forty years after
the freedom-to-marry movement began in
Washington, the first marriage licenses were issued
to same-sex couples in the state.
The process in Minnesota, another Alliance
state, was equally long, difficult, and uncertain. As
in Washington, the first lawsuit challenging
Minnesotas refusal to recognize marriage between
same-sex couples was brought in the 1970s and
ended in defeat when the Minnesota Supreme
Court upheld Minnesotas refusal to license their
marriage and this Court summarily dismissed the
couples appeal. Baker v. Nelson, 191 N.W.2d 185
(Minn. 1971), appeal dismissed, 409 U.S. 810
(1972). In 1997, the Minnesota legislature passed
its own version of DOMA, prohibiting marriage
between persons of the same sex. 1997 Minn. Laws
ch. 203, art. 10. In 2010, three same-sex couples
challenged the law in Minnesota state court. The
trial court rejected the plaintiffs constitutional
arguments and dismissed their suit. See Benson v.
Alverson, No. A11-811, 2012 WL 171399, at *1
(Minn. Ct. App. Jan. 23, 2012). A few months later,
the Minnesota legislature proposed an amendment
to the state constitution to provide that marriage
7 See Wash. Secy of State, Referendum Measure No.
74
Concerns
Marriage
for
Same-Sex
Couples,
http://results.vote.wa.gov/results/20121106/ReferendumMeasure-No-74-Concerns-marriage-for-same-sex-couples.html
(last visited Mar. 4, 2015).

-23can only be the union of one man and one woman.

2011 Minn. Laws ch. 88. Proponents of the freedom
to marry mobilized to defeat the amendment,
spending over $12 million to win by a margin of
forty-seven to fifty-three percent. 8 Only after this
narrow victory did the legislature introduce and
ultimately pass freedom-to-marry legislation in
2013. See 2013 Minn. Laws ch. 74.
The process is certain to be even more
difficult in Ohio, Kentucky, Michigan, Tennessee,
and the remaining states with still-standing
constitutional amendments banning marriage of
same-sex couples. Whereas proponents of the
freedom to marry in Washington and Minnesota
were able to engage the usual democratic process
in support of their cause, that avenue for relief is
closed off to proponents in states with
constitutional amendments forbidding the licensing
of marriages of same-sex couples. Absent court
intervention, the only way for same-sex couples in
these states to secure their freedom to marry is to
re-amend
the
constitutionwhich
typically
requires a super-majority vote or a ballot initiative.

8
See Minn. Legislative Reference Library,
Constitutional
Amendments,
http://www.leg.state.mn.us/lrl/mngov/constitutionalamendme
nts.aspx (last visited Mar. 4, 2015); Sasha Aslanian, Marriage
Amendment Fight Topped $18M, Minnesota Public Radio
News
(Feb.
1,
2013),
http://www.mprnews.org/story/2013/02/01/politics/marriageamendment-campaign-finance-reports.

-24This is no easy (or inexpensive) task. Thus

far, ballot measures to affirmatively recognize
same-sex couples freedom to marry have passed in
only
three
statesMaine,
Maryland,
and
Washingtoncompared with the more than thirty
ballot initiatives passed in other states banning
marriage of same-sex couples.9 And proponents of
the freedom to marry will increasingly find
themselves up against supremely well-funded
opponents willing to spend significant sums to
block their efforts at the ballot box. The National
Organization for Marriage, for example, has
pledged to raise as much as it takes to defeat
freedom-to-marry initiatives. 10 In short, the only
democratic process left open to proponents of the
freedom to marry in these states is an exceedingly
uphill and expensive battle that is likely to take
another generation or longer.
The difficulty of ending discrimination
against LGBT people through the democratic
9 See Natl Conference of State Legislatures, Same-Sex
Marriage on the Ballot (Nov. 7, 2012, 5:10 AM),
http://www.ncsl.org/legislatures-elections/elections/same-sexmarriage-on-the-ballot.aspx (last visited Mar. 4, 2015); Natl
Conference of State Legislatures, Same-Sex Marriage Laws
(Feb.
9,
2015),
http://www.ncsl.org/research/humanservices/same-sex-marriage-laws.aspx (last visited Mar. 4,
2015).
10 See Juliet Eilperin, Gay Marriage Fight Will Cost
Tens of Millions, The Washington Post (July 1, 2013),
http://www.washingtonpost.com/blogs/thefix/wp/2013/07/01/how-much-will-the-gay-marriage-fight-costover-the-next-three-years-tens-of-millions/.

-25process is exemplified by the slow and uneven

progress LGBT advocates have made in securing
passage of laws expressly prohibiting sexualorientation discrimination in employment. Despite
widespread public support for such laws, 11 only
twenty-one states have adopted laws expressly
banning such discrimination since the first state
passed such a law 1982; twenty-nine currently offer
no express protections; and no state has passed an

11 See, e.g., Dennis Romboy, Support for Statewide

Nondiscrimination Law Growing in Utah, Poll Shows,
Deseret
News
(Oct.
21,
2014,
2:20
PM),
http://www.deseretnews.com/article/865613621/Support-forstatewide-nondiscrimination-law-growing-in-Utah-pollshows.html?pg=all (recent poll found sixty-five percent of
Utah residents support statewide sexual-orientation
antidiscrimination statute); Public Policy Polling, Warner
Safe
for
Reelection
(May
30,
2013),
http://www.publicpolicypolling.com/pdf/2011/PPP_Release_VA
_53013.pdf (By a margin of 80%-12%, Virginians do not think
employers should be allowed to discriminate against
employees based on sexual orientation.); The White House,
Fact Sheet: Taking Action to Support LGBT Workplace
Equality is Good For Business (July 21, 2014),
http://www.whitehouse.gov/the-press-office/2014/07/21/factsheet-taking-action-support-lgbt-workplace-equality-goodbusiness-0 (recent national survey of 1,200 registered voters
found sixty-three percent favor federal sexual-orientation
antidiscrimination law) (last visited Mar. 4, 2015).

-26express sexual-orientation antidiscrimination law

since 2009.12
The state of Washington again provides a
useful example of the difficulties of passing LGBTfavorable measures through the democratic
process. A sexual-orientation antidiscrimination
bill was first introduced in the Washington
legislature in 1977 and was proposed repeatedly in
subsequent years, failing each time. 13 In 1997,
proponents of an express prohibition on
discrimination sponsored a ballot initiative, but the
voters rejected it by a vote of sixty to forty
percent.14 It was not until 2006twenty-nine years
after legislation was first proposedthat the
legislature amended Washingtons Law Against
Discrimination to expressly prohibit discrimination
on the basis of sexual orientation. 2006 Wash. Sess.
Laws 12; Wash. Rev. Code 49.60.10.
12
National
LGBTQ
Task
Force,
State
Nondiscrimination Laws in the U.S. (May 21, 2014),
http://www.thetaskforce.org/static_html/downloads/reports/iss
ue_maps/non_discrimination_5_14_new.pdf. Some states have
passed laws prohibiting discrimination based on gender
identity (as distinct from sexual orientation) since 2009. Id.
13 See Andrew Garber and Ralph Thomas, State GayRights Bill Passed 29 Years After Effort Began, The Seattle
Times
(Jan.
28,
2006,
12:00
AM),
http://community.seattletimes.nwsource.com/archive/?date=2
0060128&slug=gayrights28m (last visited Mar. 4, 2015).
14 See Wash. Secy of State, Election Search Results,
November
1997
General,
http://www.sos.wa.gov/elections/results_report.aspx?e=6&c=&
c2=&t=&t2=&p=&p2=&y= (last visited Mar. 4, 2015).

-27Meanwhile, Pennsylvania still has not

passed legislation expressly banning sexualorientation discrimination in the workplace, despite
repeated introductions of a proposed bill since 2001
and a seventy-two percent statewide approval
rating for the bill as of 2013. 15 Similarly, in the
Alliance state of Idaho, after a nine-year Add the
Words campaign to add sexual orientation to the
Idaho Human Rights Act, the legislature still has
failed to pass the proposed bill into law, despite the
support of over two-thirds of Idahoans. 16 The
notably mitigated success equality advocates have
had
through
political
channels
on
the
nondiscrimination front only reinforces how
unrealistic it is to assume that the freedom to
marry through the democratic process is only a
matter of time.

15 Monica Disare, In the Northeast, Only Pa. Lacks

Law on Discrimination by Sexual Orientation, Pittsburgh
Post-Gazette (July 29, 2013, 12:00 AM), http://www.postgazette.com/news/state/2013/07/29/In-the-Northeast-only-Palacks-law-on-discrimination-by-sexualorientation/stories/201307290195.
16 Idaho House Committee Rejects Add the Words Bill
Along Party-Line Vote, Idaho Statesman (Jan. 29, 2015),
http://www.idahostatesman.com/2015/01/29/3617387/idahohouse-committee-to-debate.html; Bob Bernick, Poll: Idahoans
Think It Should Be Illegal To Discriminate Against LGBT
Residents, Idaho Politics Weekly (Jan. 4, 2015)
http://idahopoliticsweekly.com/politics/16-poll-idahoans-thinkit-should-be-illegal-to-discriminate-against-lgbt-residents.

-28C.

The Patchwork of State Laws on

Marriage for Same-Sex Couples Creates
Significant Harms and Uncertainty for
Same-Sex Couples and Their Children.

Even if the DeBoer majority could guarantee

same-sex couples in Ohio, Kentucky, Michigan, and
Tennessee that they will eventually win the
freedom to marry through the democratic process,
that guarantee would do nothing to address the
significant harms and uncertainty same-sex
couples throughout America face right now and will
continue to face until the patchwork of marriage
laws is replaced by the same scheme of universal
recognition enjoyed by different-sex couples.
As state-based organizations, the Alliance
members recognize the role of federalism and the
laboratories of experimentation it can foster. But as
the Court made clear last Term, [t]he States
interest in defining and regulating [activities and
relations within their borders, including] the
marital relation, [is] subject to constitutional
guarantees. United States v. Windsor, 133 S. Ct.
2675, 2692 (2013) (emphasis added); see Bostic v.
Schaefer, 760 F.3d 352, 374 (4th Cir. 2014)
(Windsor does not teach us that federalism
principles can justify depriving individuals of their
constitutional rights; it reiterates Loving [v.
Virginia, 388 U.S. 1 (1967)]s admonition that the
states must exercise their authority without
trampling constitutional guarantees.), cert. denied,
135 S. Ct. 308 (2014) (emphasis added); Kitchen,

-29755 F.3d at 1228 ([T]he experimental value of

federalism
cannot
overcome
[individuals
constitutional] rights to . . . equal protection.).
This teaching of Windsor is important here.
When it comes to regulating marriages of same-sex
couples, the laboratories of experimentation have
produced a patchwork of laws that make everyday
life exceedingly difficult, uncertain, and unequal for
same-sex couples and their children. Real examples
from Alliance organizations experience illustrates
this inequality.
i. Children. In states that recognize
marriages of same-sex couples, the birth of a child
by one spouse should confer the legal status of
parent on the biological parents spouseconsistent
with the legal status of parents and children in
different-sex marriages. Nevertheless, Alliance
organizations still recommend to same-sex couples
whose marriage is recognized in their home state
that the non-biological parent take the additional
stepand incur the additional expense and
invasivenessof going to court for a second-parent
adoption, in which the non-biological parent legally
adopts the child. Foregoing this expense risks
non-recognition of the non-biological parents status
as parent upon moving or traveling to another
state. The likelihood that a same-sex couple will at
some point in their lives move to a non-recognition
state and face this differential treatment is far
from negligible. Approximately nine percent of
Americans have relocated across state lines within

-30the last five years, and approximately thirty-one

percent have done so at some point in their
lifetime. See Raven Molloy, Christopher L. Smith,
and Abigail Wozniak, Internal Migration in the
United States, 25 J. Econ. Perspectives 173 tbl. 1
(2011). Different-sex married couples, by contrast,
do not have to worry about whether their parental
rights will vanish upon crossing state lines.
ii. Security when traveling. Married samesex couples and their children also face risks and
costs not borne by their different-sex counterparts
when traveling interstate. Same-sex couples have
no guarantee, even if they are legally married, that
their marriages will be respected while in nonrecognition states. The story of Janice Langbehn
and Lisa Pond, a same-sex couple from Washington
who had been together for over eighteen years,
brings these concerns to life. Ms. Langbehn and
Ms. Pond were vacationing in Miami, Florida with
their three children in 2007 when Ms. Pond
collapsed with an aneurysm. An ambulance took
Ms. Pond to a trauma center at a nearby hospital,
while Ms. Langbehn and their children followed in
a taxi. Over the course of that afternoon and
evening, as Ms. Pond progressed toward her death,
Ms. Langbehn and the children were refused access
to Ms. Ponds room and denied information about
her status and condition. At midnightnearly
eight hours after they arrived at the hospital, and
not until after Ms. Pond had succumbed to
unconsciousnessher children were finally able to
visit her. Meanwhile, Ms. Langbehn was given just

-31one five-minute visit, when a priest administered

last rites. Ms. Pond was declared brain-dead the
next morning. Soon after Ms. Ponds death, Ms.
Langbehn attempted to obtain her death certificate
in order to seek life insurance and Social Security
benefits for her children. Both the State of Florida
and the Dade County Medical Examiner denied her
request.17
Different-sex married couples traveling
interstate need not fear the kind of treatment the
Langbehn-Pond family suffered. The marriages of
different-sex couples, and the unique rights that
attach (such as hospital visitation) are respected in
all fifty states. Not so for same-sex couples, who
travel to non-recognition states at their peril.
iii. Wedlocked couples. In all fifty states,
different-sex couples have the right not only to
marry but also to divorce when the union is no
longer working. Because every state generally
recognizes every other states different-sex
marriages, they also open their courts to divorce
proceedings for different-sex couples married in
other states. By contrast, same-sex couples who
marry in a state where they are permitted to do so,
move to a non-recognition state, and later wish to
17 See Tara Parker-Pope, Kept from a Dying Partners
Bedside, The New York Times (May 18, 2009),
http://www.nytimes.com/2009/05/19/health/19well.html?_r=0;
Lambda Legal, Langbehn v. Jackson Memorial Hospital,
http://www.lambdalegal.org/in-court/cases/langbehn-vjackson-memorial (last visited Mar. 4, 2015).

-32divorce often cannot secure the legal closure their

different-sex counterparts take for granted. For
example, the Alliance organizations periodically
hear from married same-sex couples who wish to
divorce, but cannot: they now live in a state that
does not recognize their marriage and will not
process their divorce, and they are unable to secure
a divorce from the state in which they were married
because they are no longer residents. They are thus
stuck in limbo and forced to remain legally married
to a person with whom they no longer wish to share
their life, unless they upend their lives by moving
to a state that will permit them to obtain a divorce.
Just as real people who teach our children,
create our jobs, and defend our shores are behind
the bans on marriage for same-sex couples at issue
in this case, DeBoer, 772 F.3d at 410, so are real
peoplesame-sex couples and their children
victims of these bans. Until marriage bans are
lifted in every state of the union, same-sex couples
and their childreneven those living in states that
license their marriagewill face significant,
undeserved disadvantages and uncertainty.
CONCLUSION
Because
the
sexual-orientation
discrimination at issue here is a form of sex
discrimination that is subject to and fails
heightened scrutiny; because same-sex couples
cannot rely on the political process to win their
freedom to marry; and because same-sex couples

-33and their children suffer daily harms and

uncertainty as a result of the patchwork of
marriage laws across the United States, this Court
should reverse the decision of the Court of Appeals
and hold that the Fourteenth Amendment requires
the States to license and recognize marriages
between two people of the same sex.
Respectfully submitted.
LISA M. STONE
JANET CHUNG
DAVID WARD
LEGAL VOICE
907 Pine Street, Suite 500
Seattle, WA 98101
(206) 682-9552
dward@legalvoice.org

MARCH 5, 2015

KATHLEEN M. OSULLIVAN
Counsel of Record
ABHA KHANNA
DAVID A. PEREZ
CATHERINE S. SIMONSEN
P ERKINS C OIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101
(206) 359-8000
KOSullivan@perkinscoie.com

APPENDIX
Legal Voice
Legal Voice, founded in 1978 as the Northwest
Womens Law Center, is a regional non-profit
public interest organization based in Seattle that
works to advance the legal rights of women in the
five Northwest states (Washington, Oregon, Idaho,
Montana,
and
Alaska)
through
litigation,
legislation, and education. Since its founding, Legal
Voice has worked to eliminate all forms of sex
discrimination, including gender stereotyping. To
that end, Legal Voice has a long history of advocacy
on behalf of lesbians, gay men, bisexuals, and
transgender
individuals.
Legal
Voice
has
participated as counsel and as amicus curiae in
cases throughout the Northwest and the country.
Legal Voice also served on the governing board of
Washington United for Marriage, the coalition that
successfully advocated in 2012 to extend civil
marriage to same-sex couples in Washington State.
California Womens Law Center
California Womens Law Center (CWLC) is a
statewide, non-profit law and policy center
dedicated to advancing the civil rights of women
and girls through impact litigation, advocacy, and
education. CWLCs issue priorities include gender
discrimination, reproductive justice, violence
against women, and womens health. Since its

-2ainception in 1989, CWLC has placed an emphasis

on eliminating all forms of gender discrimination,
including
discrimination
based
on
sexual
orientation. California same-sex couples won the
freedom to marry through the courts in 2008, in the
In re Marriage Cases that CWLC supported
through an amici curiae brief in support of the
challenge to the marriage exclusion. They
subsequently lost the freedom to marry through a
voter-approved ballot measure, and had to win it
again in federal court. CWLC remains committed to
supporting equal rights for lesbians and gay men,
and to eradicating invidious discrimination in all
forms, including eliminating laws that reinforce
traditional gender roles. CWLC views sexualorientation discrimination as a form of illegal
gender discrimination that is harmful to our state
and needs to be eradicated.
Southwest Womens Law Center
The Southwest Womens Law Center is a non-profit
womens legal advocacy organization based in
Albuquerque, New Mexico. Its mission is to create
the opportunity for women to realize their full
economic and personal potential, including by
eliminating gender bias, discrimination and
harassment. Obergefell v. Hodges, Tanco v.
Haslam, DeBoer v. Snyder, and Bourke v. Beshear
could help prevent discrimination in matters
involving the most intimate and personal choices
that people make during their lifetime. Personal

-3aintimate choices that individuals make for

themselves are central to the liberty protected by
the Fourteenth Amendment.
Womens Law Project
Founded in 1974, the Womens Law Project
(WLP) is a non-profit womens legal advocacy
organization with offices in Philadelphia and
Pittsburgh, Pennsylvania. Its mission is to create a
more just and equitable society by advancing the
rights and status of all women throughout their
lives. For nearly forty years, WLP has engaged in
high-impact litigation, advocacy, and education
challenging discrimination rooted in gender
stereotypes. WLP represented the plaintiffs in
Planned Parenthood v. Casey, 505 U.S. 833, 898
(1992), striking down the Pennsylvania Abortion
Control Acts husband notification provision as
repugnant to this Courts present understanding of
marriage and the nature of the rights secured by
the Constitution. WLP served as counsel to amici
curiae in T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001),
which conferred third-party standing on parents in
same-sex relationships to sue for partial custody or
visitation of the children they have raised; and In
re Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002),
which recognized that the Pennsylvania Adoption
Act permits second-parent adoption in families
headed by same-sex couples. WLP also represented
women in non-traditional employment as amici
curiae in Prowel v. Wise Business Forms, Inc., 579

-4aF.3d 285 (3d Cir. 2009), in which the Court of

Appeals reinstated a Title VII sex discrimination
claim involving concurrent evidence of sexualorientation discrimination. Because harmful gender
stereotypes often underlie bigotry against lesbian
and gay persons, it is appropriate to subject
classifications based on sexual orientation to
heightened judicial scrutiny.
Gender Justice
Gender Justice is a non-profit organization that
eliminates gender barrierswhether linked to sex,
sexual orientation, gender identity, or gender
expressionthrough impact litigation, policy
advocacy, and education. Gender Justices mission
is to dismantle damaging stereotypes about
femininity and masculinity. The organization takes
a three-pronged approach to advocacy, combining
the most current science on the root causes of
discrimination, strategic court cases, and lasting
public policy change. Gender Justice works on
behalf of anyone facing gender discrimination,
advocating for women and girls, but also for men
and boys, and for LGBT individuals who challenge
gender norms. Gender Justice believes that
discriminatory attitudes towards LGBT persons,
including the refusal to recognize marriage for
same-sex couples, are rooted in and reinforce
harmful gender stereotypes.